Rosales Aniceto v. Foulk

Filing 14

ORDER signed by Magistrate Judge Kendall J. Newman on 10/8/2013 GRANTING petitioner's 11 motion for an extension of time; petitioner shall file the petition for writ of habeas corpus on or before 11/9/2013; and GRANTING petitioner's 8 motion to proceed IFP. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISMAEL ROSALES ANICETO,

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No. 2:13-cv-1819 KJN P

Petitioner,
v.

ORDER

WARDEN FOULK,

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Respondent.

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Petitioner, proceeding through appointed counsel, seeks an extension of time until

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November 9, 2013, in which to file a petition for writ of habeas corpus. Counsel for respondent

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filed an opposition to the motion only to the extent that his failure to do so might be deemed to

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alter the statutory deadline for filing such petitions pursuant to 28 U.S.C. § 2244(d). (ECF No.

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12.) Respondent suggests that because the one year statute of limitations period commenced on

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September 13, 2013, it is unlikely the limitations period will be implicated any time soon. (ECF

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No. 12 at 2.)

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As set forth in this court’s prior order, in order to commence an action, petitioner must file

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a petition for writ of habeas corpus as required by Rule 3 of the Rules Governing Section 2254

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cases. (ECF No. 3 at 2.) Because no petition was filed, this action had not “commenced” and the

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statute of limitations period continued to run, therefore counsel was directed to file a petition for

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writ of habeas corpus forthwith.
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However, petitioner is now represented by counsel. Petitioner’s counsel was not formally

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appointed until September 19, 2013, and counsel states that she has not had sufficient time to

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obtain the trial record and accompanying documents and to review the documents. Extending this

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deadline does not alter the limitations period set forth in 28 U.S.C. § 2244(d).

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Petitioner has now filed a motion to proceed in forma pauperis. Examination of the in

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forma pauperis application reveals that petitioner is unable to afford the costs of suit.

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Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C.

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§ 1915(a).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion for extension of time (ECF No. 11) is granted;

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2. Petitioner shall file the petition for writ of habeas corpus on or before November 9,

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2013; and
3. Petitioner’s motion to proceed in forma pauperis (ECF No. 8) is granted.
Dated: October 8, 2013

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